MORTGAGE ASSIGNMENTS AS EVIDENCE OF FRAUD

In the past ten years, hundreds of thousands of residential mortgages were bundled together (often in groups of about 5,000 mortgages), and investors were offered the opportunity to buy shares of each bundle. This process is called securitization.

Each such bundle of residential mortgages was given a name, such as “Soundview Home Loan Trust 2006 OPT-2.” The name indicates information about the particular trust such as the year it was created (2006) and its contents (with OPT indicating that the loans in that particular trust were originally made by Option One Mortgage). Each such bundle/trust has a Cut Off Date identified in the trust documents (specifically, in the Pooling and Servicing Agreement). The Cut Off Date is the date on which all mortgage loans in the trust must be identified. In short, a final list of all of the mortgages in the bundle is set out. Each trust also has a Closing Date which is the date that the individual mortgages are transferred to the Trust Custodian, who must certify that for each mortgage, the custodian has a mortgage note endorsed in blank and proof that the ownership of the note has been transferred. This proof is most often an Assignment of Mortgage. Most trusts included the following or equivalent language regarding the Assignments: “Assignments of the Mortgage Loans to the Trustee (or its nominee) will not be recorded in any jurisdiction, but will be delivered to the Trustee in recordable form, so that they can be recorded in the event recordation is necessary in connection with the servicing of a Mortgage Loan.”

Title insurance companies issued policies guaranteeing that the trust had clear title to the mortgages.

When widespread defaults occurred, Trustees discovered that the laws regarding Mortgage Assignments varied significantly from state to state. Many issues regarding such Assignments were simply unresolved. One of the most significant issues was whether Mortgage Assignments could be back-dated or have retroactive effective dates. This issue arose because Trustees and their lawyers discovered in the foreclosure process that the Assignments could not actually be located, or that certain states did not allow blank Assignments.

To solve the problem of the missing Assignments, new Assignments were made and recorded. Because the question of retroactive Assignments had not been 2 resolved, most of these Assignments did not set forth the actual date that the Assignment took place. The Assignments were signed and notarized as if the transfer took place many years after the actual transfer date.

The Assignments were prepared by specially selected law firms and companies that specialized in providing “mortgage default services” to banks and mortgage companies. In jurisdictions with a high rate of mortgage defaults, over 80% of the filed Mortgage Assignments in the last three years were prepared and filed by the same five or six law firms and default processing companies.

In many states, two such Assignments were prepared and filed. The first was prepared in the name of Mortgage Electronic Registration Systems as “nominee” for the particular bank or mortgage company. When MERS authority to file foreclosures and Assignments was challenged in most jurisdictions, with varying results, a non-MERS Assignment was prepared as well.

In all of these cases, the Assignment was prepared to conceal the actual date that the property was acquired by the Trust. An examination of the Assignments filed showing the grantee as the Trust – such as “Soundview Home Loan Trust 2006 – OPT 2” – shows that most of these Assignments were prepared and filed in 2008 and 2009, when, in reality, the mortgages and notes were actually assigned – albeit defectively – prior to the closing date of the Trust. While the exact closing date can only be determined by looking at the trust documents, any Trust that includes the year in 2006 in its title most likely closed in 2006.

If a Mortgage Assignment is dated, notarized and filed in a year after the year set forth in the name of the grantee trust on the Assignment, it is actually an Assignment specially, and in many cases, fraudulently, made to facilitate foreclosures.

These Specially-Made Assignments have created havoc in the courts. In many cases, the Specially-made Assignments are dated After the foreclosure action has been initiated, making it appear that the Trust somehow magically knew prior to the assignment that it would acquire the defaulting property several months after the foreclosure action was initiated.

Repeatedly, courts have asked Trustees to explain why they were acquiring nonperforming loans and whether such acquisition was a violation of the trustee’s fiduciary duty to the Trust. No Trustee has ever come forth and explained that the Trust actually acquired the loan years before the Assignment. As a result, there are many decisions with observations similar to this observation made by Judge Arthur M. Schack of Kings County, New York, in HSBC Bank v. Valentin, 21Misc. 3d 1124 [A]:

Further, according to plaintiff’s application, the default of defendants Valentin and Ruiz began with the nonpayment of principal and interest due on January 1, 2007. Yet, four months later, plaintiff HSBC was willing to take an assignment of the instant nonperforming loan. The Court wonders why HSBC would purchase a nonperforming loan, four months in arrears?

Further, the Court requires an explanation from an officer of plaintiff DEUTSCHE BANK as to why, in the middle of our national sub-prime mortgage financial crisis, DEUTSCHE BANK would purchase a non-performing loan from INDYMAC…

In Massachusetts in October, 2009, Land Court Judge Keith Long reaffirmed a March, 2009, ruling that a lender cannot begin foreclosure proceedings before the lender has filed and recorded the Assignment, stating:

The blank mortgage assignments they possessed transferred nothing…in Massachusetts, a mortgage is a conveyance of land. Nothing is conveyed unless and until it is various agreements between the securitization entities stating that each had a right to an an assignment and they are certainly not in recordable form. U.S. Bank National Association v. Ibanez, Massachusetts Land Court Misc. Case No. 384283, consolidated with two other cases.

Many authors expect the Massachusetts Supreme Court to reverse the Ibanez decision, but the uncertainty itself, as in the case of the MERS challenges, caused lenders to flood recording offices with new Assignments.

In cases where the Trust failed to get a valid Assignment, the problem is complicated by the bankruptcy of the major loan originators, including American Home Mortgage, Option One Mortgage, and Countrywide Home Loans.

When these big mortgage companies filed for bankruptcy, they did not disclose the mortgages already sold to the trusts as assets, because the transfers occurred months and years prior to the bankruptcy filing. Years later, when the Assignments were required for foreclosures, a bankruptcy court’s permission was needed to Assign billions of dollars in mortgages. Most likely in fear that a Bankruptcy Judge would not rubber stamp such a request, no such permission has ever been sought.

In lieu of valid Assignments, Trusts continue to rely on Assignments specially made by their own law firms and mortgage default service companies. Eventually, these fraudulent Assignments are being discovered by Courts, and the foreclosing trusts required to prove that they own the Mortgage and Note in the foreclosure action without reliance on Assignments that misrepresent the date of the actual transfer to the Trust the authority of the signers of the bankrupt original lenders. For thousands of homeowners, this realization has come too late.

17 Responses to “MORTGAGE ASSIGNMENTS AS EVIDENCE OF FRAUD, by Lynn Szymoniak, ESQ.”

I have been following your website for months. My assignment was signed by Diane Dixon, as VP of Fremont Investment and Loans, and notarized by Brenda McKinzy, from Harris County, Texas. Then Brenda McKinzy also has a notary signature, saying she is a notary in Florida as well. Diane Dixon is really a VP for Litton Loan Servicers in Texas. They are now the loan servicer and not the owner of my loan. Fremont Investment and Loans was located in California, had my mortgage in August, 2006, filed foreclosure against me with MERS as nominee in December, 2007. My loan is under the Pooling and Service Agreement of Nov 1, 2006. This paper I found on the Clerk of Courts website is called “Assignment of Action and Assignment of Final Summary Judgement of Foreclosure” and it is dated July 8, 2008. Meanwhile, Fremont was ordered to cease and desist by the SEC prior to filing for bankrupcy June 19, 2008. Also, I have a financial affidavit that was signed by a Christopher Spradling, Foreclosure Manager for Litton Loan. The fraudulent Assignment is trying to assign the foreclosure to HSBC Bank, Trustee. I have an attorney but can’t reach them, and I asked for mediation before the Judge before I got the attorney. Mediation was in March, 2010, Litton attended by phone, acting as the loan owner holder, with an attorney for Fremont in person. How do I get you a copy of my fraudulent assignement–I can fax it. Litton in form letter wants me to send financials by fax by the 8th, or says if I don’t, I will not qualify for HAMP. I think they should be contacting my attorney–I don’t feel I am mediating with the right
person of authority, and I want to know what other homeowners are doing as far as Court motions to sue for fraud. Thank you for your diligence in uncovering the fraud–I just need to know if other attornies are going after fraudulent assignments in Court.

Do you have a copy of the documents notarized by Brenda McKinzy? I would like to compare the signatures and send you a copy of my documents so you can use it for your court action.

Brenda is also the notary that signed my recorded documents. I sent a certified letter to her at 11900 City Park Central Lane Apt 9303, Houston Texas 77047 ordering copies of the notary book pertaining to the signature on my recorded documents. The mail was returned to me as unclaimed.

So, the address she has on file with the State of Texas is not current to her notarized license specifications.

I watched your interview on 60 minutes last night. I applaude your actions and your bravery. It is nowhere near the scale of your discovery but I have a case where police fabricated recorded evidence and used it to prosecute a misdemeanor. Like you, we cought them red handed complete with crime lab reports and affidavits. The problem is no police agency will file a report, no prosecutors office will prosecute and no attorney will take the civil case. Do you have any suggestions?
Keep up your good works.
Best regards,

I live in the state of Hawaii.How can I fight someone like Bank of America.They state they are the server of my loan from countrywide,but they don not own my loan.Who has my loan and how can I contact them for modication help??

Wells Fargo is the originator of my son’s loan. They have not been helpful in re-financing his loan after losing his job and getting another one at a much lower hourly wage. They are planning on foreclosing. How can I find out if they are acting appropriately?? I don’t know where to start. He has received a letter of foreclosure if his payments are not brought up to date. Any help would be appreciated….

I also have an fradulent assigment of mortgage from new century mortgage to Bank of America National Association as successor by merger to lasalle bank as trustee for the c-bass mortgage loan asset-backed certificates series 2007cb2. Signed by Diane Dixon as vice president for litton loan and with Brenda Mckinzy as notary on behalf of new century mortgage on june 3 2009, two years after the BOA became the trustee for the trust account. What a FRAUD! can some one email me any copies signed by Diane Dixon and Brenda Mckinzy for my foreclosure defense case? I am collecting evidence of robo signing, and fraud.

Lynn, have you ever served in the capacity as an expert or qualified as a mortgage audit expert in a case. I have a case pending in Georgia and I am interested in securing a mortgage audit expert. My email address is fmkelley11@yahoo.com

can some one help me? Been discharged from13in 2012 we were forced into bankruptcy because the lasalle bank,to abnamro, were puting all my payments toward suspense or others so i looked late. Bank of america has it know the forclosed on me i found out after all the numbers didnt add up even after bankruptcy to look in to it closer. Found they r charging me arrears 2 times 33 k in misc postings. So i looked at the assignment of mortgage low and behold forged robosigned i found there names on docs from the lender services so they cant be asst vice president or vice presidents. Plus it would be immpossible to b a vice president of 4 different banks in different states on the same day! They also were trying to charge me all there fees for the bankruptcy that i already payedso i think this would be called mortgage serviving fraud on top of every thing else. The att. Said i cant do anything about this now because the bankruptcy is over but they robbed me of the correct required procedure! I think the promissary note has been altered. Iam so confused i have evidenct but now what do i do with it

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